Judicialization of politics in Bangladesh: Towards a wider margin of appreciation for the political institutions

Synopsis

The lecture shall discuss the trend of judicial intervention in politics in Bangladesh by examining, especially, the Supreme Court’s 13th Amendment decision in which it invalidated the non-party caretaker government (CTG) system. In the judgment, the majority Court (4: 3) argued that an unelected government for whatever short period of time is anti-democratic and hence against the ‘basic structure’ of the Constitution. Following the verdict, an absolute Parliament took no time to enact the 15th Amendment to do away with the election-time CTG system. Thereafter, a serious political turmoil began with unprecedented protests and violence, leading to an almost one-party parliamentary election in 2014. This lecture shall look into the decision-making process of the Court as well as the consequences that followed this un-pragmatic judicial intervention into mega-politics. The lecture will then move on to argue that the constitutional challenge to the CTG system was in effect a highly politically charged issue requiring political wisdom rather than judicial intervention. By deciding on the legality of electoral system introduced through a consensus-driven constitutional amendment, the Court has arguably struck an un-pragmatic and unsolicited intervention into politics. Even if the Court were to decide the case, it could have avoided this intrusion by applying the basic structure doctrine in a locally relevant context. Seen through the lens of western-inspired constitutional theories, the system of care-taker government is an anti-thesis to democracy. Bangladesh adopted this apparently undemocratic system quite deliberately and as an exception for the greater sake of democracy itself. Presumably, it is a temporary measure, but the question when to pull it off should be not for the Court to decide. The lecture shall judge the Court not merely by interpreting its decisions on legal and technical grounds, but by seeing it as a site of politics and power. It shall also shed some light on the interplay between politicization of the judiciary/’law’ and judicialization of politics in Bangladesh, with necessary insights from select comparative experiences of judicialization of politics from other Asian countries. Finally, the lecture shall conclude that while interpreting the Constitution and its fundamental premises, the Court should take the Constitution as an ‘idea’ and not as a mere text and that, on the question of legality of any constitutional amendment involving politically-loaded structural issues, it should defer to the course and wisdom of politics. In applying the celebrated yet problematic doctrine of basic structure, the Court’s challenge is to strike a proper balance between preserving the ‘constitutional identity’ of the nation and leaving a wide enough margin of appreciation for the political institutions of the State.

About the speaker

Dr. Ridwanul Hoque is the author of Judicial Activism in Bangladesh: A Golden Mean Approach (Cambridge Scholars Publishing, 2011) and an Associate Professor of Law at University of Dhaka. Previously, he was a visiting scholar at Cornell University in the US and University of Melbourne in Australia. Dr. Hoque has drafted a number of national legislations including the Children Act and the Human Trafficking Act. He has published extensively in American, British, Indian and Bangladeshi journals. Dr. Hoque holds an LLM from University of Cambridge and a PhD in Comparative Public Law from School of Oriental and African Studies.

 

Dr. Ridwanul Hoque
Associate Professor of Law at University of Dhaka

 

Time and date
Sunday 20 July 2014, 12 to 1:30 pm

Venue
Room no. 101, Department of Law, University of Dhaka


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